How do you separate and still protect yourself, asset-wise?

[Par for the course]

My wife and I bought a house two years ago. I betrayed her recently (internet affair without any actual meeting, but that is essentially irrelevant to this post) and she found out about it. She wants me to move out, and I agree to that in principle, acknowledging the fact that I am in the wrong here, and with a plan to seek counseling and deal with my own issues. The problem is, the house we bought is in both our names. If I move out - i.e. separate from my wife - what are my options, legally? How do I protect the assets that we have built up in the house and legally must share if we ever get divorced?

 

Regarding the mortgage, I currently pay for the entire thing each month, and my wife handles all the other bills except my own car payment. But once we separate, I cannot pay for both the house AND an apartment, and she cannot really afford to pay for the house on her own. I would be willing to help, but my wife is adamant about me signing the house over to her, and then she will refinance with her (admittedly wealthy) parents cosigning if necessary (probable). She may be fantasizing about this, but this is what the financial advisor supposedly told her she could do. Her fear is that I will indeed force the sale of the house at some point, requiring her to find a place to live and move her daughter. She wants security, basically, without me being any risk to that. I can certainly understand that, and quite honestly do not want that to happen either. BUT - I cannot be a pushover here. I have to try and protect myself legally and financially, as I've put a lot of money (not to mention time and effort) into the house in the two years.

 

In my state (NY), my understanding is that a legal separation can be drafted, and at the end of a full year, either party can then request - and automatically receive - a divorce. What me and my wife have decided, in principle, is that we will re-appraise the house, subtract off whatever we owe on the house, and split the remaining equity. Fair enough. The problem is, she can't be expected to pay me that equity in one lump sum. She wants to have the agreement read that she will owe me "x" amount of dollars, but will not have to pay it until her daughter is through college - 18 years is the number she mentioned. For me, my feeling is that if the one year passes, and my wife wishes to get the divorce, then I want the money then and there - which, I understand, is not feasible for her without selling the house.

 

There is, of course, a chance this will all be null and void before the year is up. But it is probably slim, given my wife's unforgiving nature. I have to protect myself and consider the worst case scenario, which is that she WILL request and receive the divorce in a year. I am just not willing to wait 17 more years for my equity to be returned to me. I would want it right then and there, but the only way we could do that is if I "force" (if that's possible, not sure) my wife to sell the house and then she could give me the equity owed to me immediately.

 

My wife will not agree to this scenario, because as I said before, she is very concerned and protective of having a roof over her daughter's head until she's through with school. So, we are basically in a deadlock here, and it's starting to become just as angry and argumentative as an actual divorce proceeding would be. And obviously, the more we argue about this, the more likely it is that the resentment will mean that the divorce will be probable, but simply delayed a year due to the way our law regarding legal separation reads.

 

Does anyone have anything relevant to add here? Comments or suggestions are most welcome, as this seems to be an insurmountable problem to me at the moment. How do other couples separate? Is it not as easy as it would appear to be? Couples separate all the time... I hope I've explained adequately, and thank you for reading...

[brashgal]

yikes! See a lawyer. So much depends on the state you live in, my sister lives in another state and also recently went through a divorce and we were surprised at the differences (and they were both community property states!). I would not give in too easily now either - talk to a lawyer first before she gets too entrenched in the idea that you'll be signing over the house.

 

No chance of working things out? There have been folks who've posted here who've worked things out in what somewhat similar situations.

[Par for the course]

Thanks... We did each see a lawyer - I didn't even realize that we can't BOTH go to one lawyer and get advice. All they want to do is represent one party and legally joust with the other party and another lawyer. Ridiculous.

 

I sure hope we can work things out, but then again I thought I was in love with her and yet I betrayed her (which by definition is NOT "love", even if it was a fleeting, spur of the moment thing), so in the end it's really up to her. I'm not even sure if seeing a therapist is going to help, but whatever happens, I guess I'll be a better person in the end for it. Lessons learned and all that. If I just move into my apartment and sit on my rear end, that's certainly not going to be evidence of my sincere intentions. But I also can't go into this thinking "I'm going to show her I can change" because I understand that's doing it for all the wrong reasons. I have to do this for myself and hope that she sees some sort of change in me, but I can't focus on her during this. That's why I really feel we have to separate.

 

I think we'll be able to resolve this separation of assets amicably, but we haven't yet, so... We have a framework in which I've agreed to delay the payment of my portion of half of the equity in the house, but it's a long time - 18 years - longer than I really felt was appropriate. Still, my W does have a daughter to concern herself with (the 18 years is so my W is sure she'll be out of college), and I'm not such a jerk that I'm going to demand I totally get my way here. After all, it is *I* who precipitated this whole event, so... The other sticking point is that she asked if I would be willing to help her out financially with the mortgage, and I said I would be willing, but I am NOT going to put that into the separation agreement in writing. She is just going to have to trust that I will send her money every money, and again she's not happy with that. Hey, I'm not going to be a complete pushover here, but I'm trying to find a way to show her that I do care about her and still love her despite what I unfortunately did during my momentary lapse of reason.

 

The lawyer I talked to advised me to do none of this, but I march to my own drummer I guess.

 

In a year, we'll know what the story is - if not sooner. I guess I'll just consider the equity on hold for the next 18 years as a retirement account. Without interest.

 

Sigh. This is still so terribly confusing and there doesn't seem to be a good answer for me EXCEPT to be a selfish jerk and ignore the health and welfare of my stepdaughter. But I just can't bring myself to do that, so I guess I just have to accept playing the role of a martyr to a degree.

 

Thanks for the reply and concern brashgal. The best case is most definitely that sometime in the next year we file a statement throught the courts that the separation agreement is NULL AND VOID. We shall see. A long way to go until then, and a lot of work to do on my behalf... Took the first step today, got my apartment, move in next week. No computer however - not going to even allow myself the temptation to repeat my mistake. Being apart, it would be all to easy to get bored and do the same thing again. I need to find things to do with my time like join a gym and perhaps get a second job.

 

The worst part about all this - still loving my W dearly, understand - is that she will be all alone with no one but her 6 year old daughter to watch over her. I guess I can't worry about her and her safety while alone, and I guess I have to focus on myself, but it's so hard when you love someone but must remain apart. Very hard. I feel like my separation is more like a form of punishment for what I did, but maybe that IS exactly what it is...

[clia]

We did each see a lawyer - I didn't even realize that we can't BOTH go to one lawyer and get advice. All they want to do is represent one party and legally joust with the other party and another lawyer. Ridiculous.

 

It's really not...as you can see, you and your wife disagree about how the separation agreement should go. One lawyer can't look out for both of your best interests at the same time.

 

We have a framework in which I've agreed to delay the payment of my portion of half of the equity in the house,

 

I don't think you need to agree to this. Your wife wants to separate. Fine. That means she will have to make some sacrifices about her style of living. Just because she can't stay in *this* house does not mean she will not have a roof over her and her daughter's head. I think it's perfectly normal and within reason for you to request sale of the house, and she can then buy a smaller house and pay you your equity. You'd be crazy not to request this.

 

The other sticking point is that she asked if I would be willing to help her out financially with the mortgage, and I said I would be willing, but I am NOT going to put that into the separation agreement in writing.

 

Be sure that it is in writing in your separation agreement that you get off the mortgage and she has to refinance on her own. Whatever you want to do beyond that is your choice, but again...why?

 

Listen to your lawyer...and make sure he/she is a good divorce attorney. You can get that your wife will find a good one.

[Par for the course]

Thanks clia. I dunno... Once the lawyers get involved, I feel like throwing up my hands and saying "The heck with it. It sounds like a divorce, it feels like a divorce, it IS a divorce!"

 

This is a *separation*. With the intent that we are separating to work on things without the anguish and anger and all of that by living on top of one another while we are at odds. Yes, it can legally end in a formal divorce in a year, but it is not one yet, and I just cannot understand why we need to be dealing with lawyers at this point. Except, of course, I guess I do understand that I must try and protect myself. After all, I am on the deed/title/mortgage, and if I just leave the house, I have no control over my credit history if my W were to default.

 

At the same time, it appears HER fear - that I would move out and then change my mind and make her sell the house - would seem to be unfounded. How can I "force" her to sell when both our names are on everything? I guess if we WERE to divorce, but I suppose there must be rules regarding what/what/where/when a divorce can take place. One party cannot just out of the blue say "I want a divorce". The lawyer I saw told me that, anyway - that my transgression, as bad as it was, was NOT grounds for divorce.

 

Anyhow, I understand your point clia, but only in the context that you seem to already be assuming this separation will in fact directly lead to a divorce down the road.

 

Call me a fool, but I am going into this with the belief that this separation will help me to deal honestly with my failings as best I can, with my W understanding and supporting me, and finally ending in reconciliation. At that point, this whole discussion of asset division becomes a moot point.

 

Of course, with my W so adamant about putting everything in her name, I sometimes question her sincerity, but I'm willing to risk my heart and my wallet to some degree on that. Call me a romantic fool I guess.

 

Have I accurately judged your post? Or have I missed something?

 

Thanks for the advice, but as I say, I suppose I march to a different beat. I'm not all that much of a materialistic person, so if I am wrong about this and it costs me a few thousands of dollars lost in helping her survive, I can shrug that off without a second thought. But I can't shrug off our marriage so easily right now. I didn't do what I did to try and get out - I did what I did because I am a dumbbell and (apparently) a sex addict and I am going to get help for that. If I hadn't done what I did, none of this would be happening, and my W wouldn't be demanding that I leave, so I give her the benefit of the doubt - and I also do feel I owe her some retribution for her pain and suffering. Isn't that what you're supposed to do when you love someone? Or do we always have to be cold and calculating and selfishly seek "what's best for me?"

[clia]

I don't know the legal difference between a separation agreement and a divorce agreement in NY. I only assume that it is nearly the same type of agreement. With a divorce it is obviously more final, so I'm not sure if you get into whose name the mortgage is in and whatnot with a separation agreement.

 

I'm not saying I *know* you will get divorced. I just think you need to protect yourself, regardless. No matter how much you love your wife, etc....things can get ugly.

 

After all, I am on the deed/title/mortgage, and if I just leave the house, I have no control over my credit history if my W were to default.

 

Exactly!

 

How can I "force" her to sell when both our names are on everything? I guess if we WERE to divorce, but I suppose there must be rules regarding what/what/where/when a divorce can take place.

 

Right. NY requires a 1 year separation. After that I would think you could "force" her to sell.

 

One party cannot just out of the blue say "I want a divorce".

 

Um...I think they can.

 

Of course, with my W so adamant about putting everything in her name, I sometimes question her sincerity, but I'm willing to risk my heart and my wallet to some degree on that. Call me a romantic fool I guess.

 

You are romantic fool. Your lawyer will offer you the objective, not romantically in love, viewpoint. Please at least try to listen to him/her.

[Par for the course]

Originally posted by clia

You are romantic fool.

 

I guess I was just asking for that, wasn't I?

 

Originally posted by clia

Your lawyer will offer you the objective, not romantically in love, viewpoint. Please at least try to listen to him/her.

 

Yes, understood. I DID listen to him, but it's more a matter of accepting the viewpoint. I'm coming from another place entirely on this. The way the lawyer put it to me is that he HAS to consider "worst case" for his client. If he does otherwise, and the worst case DOES occur, the client will obviously be upset (at best) - "Why didn't you tell me this could happen?"

 

I do understand, but I also feel this whole process stinks, because instead of separating to work on the possibility of reconciliation at some point, right from the start it becomes "what's in it for me", and the very antithesis of "love". To me, a big part of love is NEVER thinking selfishly, as in "what's in it for me?" And I hate that. But I do realize you are correct in what you are trying to tell me, and I need to come to grips with all of this.

 

FWIW, my W has not discussed the separation agreement in two days. And I can tell that she is giving a lot of thought to what is occurring here. She's also been very cuddly and such, surprising me. I still feel I have to go away and work on myself with the help of a psychologist, and she hasn't told me she doesn't want me to leave, nor do I expect her to - I still know this is what I have to do (I did get my apartment last night and I am moving out next weekend). What I DO hope is that she is feeling the same way as I am about the lawyers and the coldness of it all, and perhaps we can simply do a "trial separation" instead of a "legal" one. That doesn't safeguard me or remove my risk regarding the upkeep of the mortgage and my credit rating, but I am not going to worry about that right now. If it ever DOES get to a divorce situation, well, then the love is long gone and I guess the kid gloves can come off at that point. But why not deal with that when it comes, instead of doing it right now when there is still hope for the relationship to rekindle? If we work it all out right now, as I said before, it just presents the appearance - and reinforces the notion - that it IS a divorce, but one that is simply delayed one year due to the laws of our state regarding legal separation.

 

BTW, clia, I read some of your other posts elsewhere on loveshack, and I respect and admire your viewpoints on love and relationships. I'm just having a hard time accepting this particular situation, since it is so personal to me. But I thank you for your advice, regardless...

[brashgal]

Maybe absence will make the heart grow fonder.

 

In the meantime, keep your eyes open. If the separation paperwork does get filed, my guess is if divorce follows, it will be based on what was agreed upon in the separation. You may not be able to change much if you change your mind (i.e., you decide you need additional financial security). Don't rush.

 

Best of luck.

[Par for the course]

Originally posted by brashgal

Maybe absence will make the heart grow fonder.

 

Best of luck.

 

Thanks brashgirl... I've told my wife there are basically two outcomes here - one is along the lines of your quote, and we can take this bad situation and turn it into a good one by working on ourselves, and our marriage and by me realizing that what I did indicates that my priorities were terribly out of order in my life.

 

Of course, the other possibility is echoed by the OTHER quote you could use here: "Out of sight, out of mind"... Obviously, I much prefer the optimistic version of things. There are no promises and no guarantees in life, but there is never a lack of hope unless either party refuses to consider that there is any. Best wishes to you too.

[antnonie]

This stuff sucks. I know my DH and I have the problems we have because we did not communicate well. Him being military makes everything twice as hard. He wanted to separate but I worry he wants to "play" single again. I value my marriage too much to stay married to someone who is screwing everything that moves. He told me him moving out has nothing to do with sex but he broke the trust once. I wish I could give everyone good advice but I only have opinions right now. Dont know if they would help anyone or not..